THE LAW OF ANTI-DEFECTION IN INDIA

This article was written by Ananya Patil a student of Sharda University.

The Oxford dictionary defines defection as the desertion of one’s country or cause in favor of an opposing one. In law, defection is described as the scenario wherein a member of one political party joins an opposing party after abandoning his loyalty towards the former and pools his resources to advance the objectives of the latter.

Though the Constitution did not originally have any provisions regarding defection, anti-defection laws were passed by the parliament in the 52nd amendment of the Constitution, in 1985, during the tenure of Rajiv Gandhi. It is presently laid down in the Tenth Schedule of the Constitution which also describes the process for disqualification of legislators on the grounds of defection:

A member of a political party will be disqualified if he resigns from his party or disobeys its leadership on a vote. He will also be disqualified if he does not vote or abstains from voting as per the party’s whip. However, if the member has taken prior permission or is condoned by the party within 15 days of such coting or abstinence, the member shall not be disqualified.

An independent member will be disqualified upon joining a political party after being elected.

Nominated members who are not affiliated to any party have the right to choose any party within a period of six months, after the expiration of which they will be treated as independent members.

The above criteria for disqualification on the grounds of defection have some exceptions:

A speaker or a chairman can resign from his party upon election and rejoin the party after he is demitted from his post.

Two parties can also be merged together if a minimum of two-thirds of both the parties’ legislators vote for it. Earlier, the criteria was for one-third of the party’s legislators to be in favor of the merger but the 91st amendment changed the law to the present ratio.

The power to disqualify a member on the grounds of defection lies with the Chairman or the Speaker. However, if the Chairman or the Speaker himself is caught defecting, the decision shall be taken by a member of the House that is elected by the House. The original anti-defection law stated that the decision taken by the presiding officers were final and were not subject to judicial review. The Supreme Court later struck down this part of the law. It said that while there would not be any judicial intervention until the decision was made by the presiding officer, the decision itself would be subject to appeal in the High Court and the Supreme Court.

The anti-defection law was met with widespread resistance when it was first passed. In Kihoto Hollohon v. Zachillhu and Others1, a PIL was filed challenging the constitutional validity of the law. The Supreme Court upheld the validity of the law and declared that the law did not deny the rights of free speech or violate the basic structure of the parliamentary democracy. It said that “the anti-defection law seeks to recognize the practical need to place the proprieties of political and personal conduct above certain theoretical assumptions.” However, the apex court made a pivotal observation that the disqualifications must be limited to the votes that were crucial to the existence of the government or were integral to the electoral programming of the party.

In the case of Ravi S. Naik v. Union of India2, it was held that resigning from a political party constituted as voluntarily giving up membership of the party. It said that, “Even in the absence of a formal resignation from membership, an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political to which he belongs.” The case of G. Vishwanathan v. Speaker, Tamil Nadu Legislative Assembly3 threw light on the meaning of ‘Voluntarily giving up membership of one’s party’. The issue raised in this case was whether it would be considered voluntarily giving up membership if a member was expelled from one political party and joined another after such expulsion. The Supreme Court held that once a member was expelled, he was treated as an unattached member in the house and but continued to be a member of the political party. Therefore, his joining another party would be considered as grounds for disqualification under defection. It said that, “Paragraph 2(1) read with the explanation clearly points out that an elected member shall continue to belong to that political party by which he was set up as a candidate for election as such member. This is so notwithstanding that he was thrown out or expelled from that party.”

In the 25-plus years, since the passing of the law, India has seen complaints made against 62 Lok Sabha MPs. Of these, 26 have been disqualified (10 of them were disqualified after the trust vote of July 2008 over the India-US Civil Nuclear Co-operation). Four cases were also made against Rajya Sabha members and all were upheld. As far as the state legislatures are concerned, 113 cases were upheld out of the 268 that were complained (until 2004).

The anti-defection law has served many purposes since it was passed. It has allowed political parties to have a stronger hold over their members and prevent the latter from being lured by ministerial money. It has provided security and stability to the government by preventing unwanted shifts in party allegiance. But every cause has its pros and cons. In this case, the drawback of the anti-defection law is that it has limited, to a certain extent, the role of a member of parliament or state legislature.

To preserve the sanctity of the law of anti-defection and uphold the integrity of the Speaker and the Chairman’s office, the Election Commission has recommended that the decisions under the Tenth Schedule should be made by the President/Governor on the binding advice of the Election Commission. A constitutional amendment for the same is presently being debated.